Menstrual Hygiene and Constitutional Dignity: Beyond Access in Dr Jaya Union of India Thakur v.

INTRODUCTION

Menstruation is a natural, biological, essential process and experienced by millions of women, yet society has continued to treat it as a subject of shame, impurity, and silence. Menstrual hygiene, despite being directly connected to health and dignity, has for a long time remained ignored both socially and institutionally. The stigma surrounding menstruation is so deeply embedded that even women often hesitate to openly discuss it among themselves, while policymakers and institutions have historically failed to treat it as a serious public issue.

In January 2026, India’s Supreme Court delivered a transformative judgement recognising access to menstrual health and hygiene as an integral component of the right to life, dignity, and bodily autonomy under Article 21 of the Constitution in the case of Dr Jaya S. Thakur v. Union of India. In doing so, the court moved menstrual health from the realm of welfare schemes and policy initiatives into the domain of enforceable constitutional rights—an important development in the evolving jurisprudence of gender equality and health justice.

The ruling touched on the institutional obstacles that menstruating girls, and especially those in government schools and in rural areas, still encounter. The court has recognised that the lack of gender-segregated toilets, access to safe water, menstrual supplies, and hygienic waste disposal systems compels many girls to miss school during their menstrual cycle, which in essence restricts access to education and promotes gender-based inequality. Recognising all these deprivations as an abuse of dignity and autonomy, the court established menstrual health as a subject of constitutional law of substantive equality.

The judgement is undoubtedly progressive in recognising menstrual rights under Article 21. However, a closer reading of the ruling shows that its primary focus remains centred on accessibility and distribution-based solutions. While these measures are necessary, they alone cannot address the deeper social realities attached to menstruation. The issue of periods in India is not limited to lack of access; it is equally rooted in silence, shame, misinformation, and long-standing social conditioning.

This article seeks to critically analyse the judgement in Dr Jaya S. Thakur v. Union of India while examining the broader gaps within India’s menstrual health framework. It argues that although the judgement represents an important constitutional recognition of menstrual rights, its approach remains largely access-oriented and does not sufficiently address the structural and social barriers that continue to persist. Therefore, meaningful change cannot be achieved merely through increased access but requires a transformation-oriented framework that actively confronts stigma, silence, and societal attitudes surrounding menstruation.

UNDERSTANDING THE JUDGEMENT

Dr Jaya Thakur filed a writ petition before the court under Article 32 of the Constitution in the public interest with conditions for providing free sanitary pads to every female child studying between classes 6 and 12, a separate toilet for females in all government-aided and residential schools, and a three-stage menstrual awareness program. The judgement issued a continuing mandamus to ensure “substantial compliance” with the court’s directions, citing staggering drop-out rates and absenteeism among menstruating girl students. The judgement links inadequate access to menstrual hygiene to the violation of the fundamental right to education under Article 21A and the Right to Education Act (RTE) 2009. It further states it in the doctrine of substantive equality under Article 14 and the recognition of dignified menstrual health as a part of the right to life under Article 21. The Judgement noted that this right should not be a formal entitlement, and there should be “effective and continuous access to education.” The lack of menstrual facilities was identified as a barrier preventing it. Referring to Section 3(2) of the RTE, the Court stated that menstruating students have to bear additional costs to complete their education, which is barred under the provision. In essence, the absence of sanitary napkins and safe disposal mechanisms compels menstruating girls to miss school for several days each month.

Alongside access to menstrual health facilities, the Bench addressed the lack of toilets in schools. The bench held that the lack of menstrual health facilities impeded the equality of opportunity, thereby violating the principle of substantive equality. The court issued the following directions to all states and union territories to ensure every school:

1. Functional, gender-segregated toilets with usable water connectivity in every school;
2. Free sanitary napkins manufactured in compliance with standards and having safe, hygienic, and environmentally compliant disposal mechanisms.

LIMITATIONS OF AN ACCESS-CENTRIC APPROACH

While the Jaya Thakur judgement is a landmark recognition of menstrual hygiene as a constitutional right, its remedial framework remains confined to a “commodity-distribution” logic. By focusing primarily on the provision of sanitary napkins, gender-segregated toilets, and disposal mechanisms, the Court frames menstrual exclusion as a logistical problem of “period poverty” rather than a systemic crisis of “period stigma.” This approach creates a welfare-delivery model that treats the menstruating body as a site for state charity, rather than a transformative constitutional model that views the body as a site of political and social agency.

The fundamental limitation of this access-centric paradigm is its failure to recognise that menstrual discrimination is intersectional and behavioural, not just infrastructural. In the Indian context, the barriers to equality are rooted in deep-seated notions of “impurity” and “pollution” that dictate communication, mobility, and social participation. Providing a sanitary pad does not dismantle the “culture of silence” that prevents a girl from using it; building a toilet does not negate the “menstrual concealment imperative” that keeps her isolated. Even when facilities are available, the underlying stigma ensures that menstruation remains a source of institutional discomfort and personal shame.

From the perspective of Article 21, the right to dignity implies more than mere biological survival or the presence of hardware. It demands “Menstrual Justice”—a framework that actively confronts the social taboos that marginalise individuals regardless of their access to products. By prioritising information over transformation and infrastructure over inclusion, the Court’s directives leave the patriarchal and cultural foundations of menstrual stigma unchallenged. True constitutional compliance requires a shift from simply managing a biological process to actively normalising it within the public and private consciousness. Without this shift, the goal of achieving substantive equality remains an unfulfilled promise, leaving the lived reality of menstruators largely unchanged despite the presence of new infrastructure.

MENSTRUAL HEALTH POLICIES IN INDIA

The increasing attention towards menstrual health has resulted in the development of multiple policies and institutional measures concerning menstruation and menstrual hygiene. This section examines these frameworks to understand the nature of the measures introduced and to analyse whether they sufficiently address the deeper social and structural issues surrounding menstruation.

MENSTRUAL HYGIENE SCHEME- 2011

The Ministry of Health and Family Welfare introduced a scheme to promote menstrual hygiene among adolescent girls aged 10-19 years in rural areas. The major objectives of the scheme were to increase awareness among teenage girls regarding menstrual hygiene, to increase access to use good quality sanitary napkins in rural settings and to ensure safe disposal of the napkins.

The scheme was initially implemented in 2011 in 107 selected districts in 17 States, wherein a pack of six sanitary napkins called “Free days” was provided to rural adolescent girls for Rs. 6.  The ASHA will continue to be responsible for distribution, receiving an incentive of Rs 1 per pack sold and a free pack of napkins every month for her own personal use. She will convene monthly meetings at Anganwadi Centres or similar platforms for adolescent girls to focus on menstrual hygiene and to discuss other relevant SRH issues.

Rashtriya Kishor Swasthya Karyakram (RKSK) — 2014

The Rashtriya Kishor Swasthya Karyakram was launched on 7th January, 2014. The key principles of this programme are adolescent participation and leadership. The programme envisions enabling all adolescents in India to realise their full potential by making informed and responsible decisions related to their health and well-being and by accessing the services and support they need to do so.

National Guidelines on Menstrual Hygiene Management (MHM) — 2015

The Menstrual Hygiene Management Guidelines were issued by the Ministry of Drinking Water and Sanitation for all adolescent girls and women. It mentions what should be undertaken by state governments, district authorities, engineers and technical officials in the respective line departments, and school heads and teachers. Developed as a sub-component under the Swachh Bharat Mission Gramin (SBM-G). This shift represented a move from a product-focused approach to a physical structure-oriented approach. These guidelines standardised required facilities for school WASH facilities, like provision of changing areas, water supply system, segregation of toilets, and methods of disposal of pads (incinerators and deep burial pits).

Pradhan Mantri Bhartiya Janaushadhi Pariyojana (PMBJP) — 2018

 The Department of Pharmaceuticals under the Ministry of Chemicals and Fertilisers implements the Pradhan Mantri Bharatiya Janausadhi Pariyojana (PMBJP), which is an important step in ensuring the health security for women. Under the project, over 16000 Janaushidhi Kendra have been set up across the country that provide Oxo-biodegradable sanitary napkins named ‘Suvidha’ at Rs. 1/- per pad only.

Samagra Shiksha Abhiyan (MHH Interventions) — 2018

Department of School Education and Literacy implements an integrated scheme, namely ‘SamagraShiksha’, under which State-specific projects for varied interventions on menstrual health and hygiene, including installation of sanitary pad vending machines and incinerators, are sanctioned. Ministry of Women and Child Development implements the Scheme for Adolescent Girls (SAG) under which one of the components is improving their health and nutritional status, and motivating them to go back to formal schooling.

National Menstrual Hygiene Policy for School-Going Girls — November 2024 

The National Policy on Menstrual Hygiene for School-Going Girls, endorsed by the Ministry of Health & Family Welfare, Government of India, in November 2024, is aimed at providing every school-going girl access to safe, cost-effective, and respectful menstrual hygiene management services. The Policy outlines a comprehensive strategy for enhancing awareness about menstruation, ensuring the availability of quality menstrual hygiene products, creating gender-sensitive sanitation facilities at schools, and adopting environmental safety measures for disposing of used menstrual products. Through the Policy, there will be efforts to reduce stigma and misperceptions associated with menstruation through appropriate education, community mobilisation, and capacity building among teachers and other frontline personnel, contributing towards empowering adolescent girls.

Although India has developed numerous central policies, this extensive legislative network remains functionally limited. As the Supreme Court observed in Dr Jaya Thakur v. Union of India, “Undoubtedly, there is no dearth of policies, schemes, programmes aimed at addressing the issue. However, what seems to be lacking is effective and consistent implementation. The deeper systemic failure is that these frameworks are conceptually inadequate. By focusing exclusively on commodity distribution and physical infrastructure, they reduce a complex socio-cultural crisis to a supply-chain problem. Consequently, they fail to dismantle the pervasive period stigma, societal shame, and institutional silence that continue to dictate the lived realities of menstruators.

COMPARATIVE APPROACHES: MOVING BEYOND ACCESS

If we want to move beyond just handing out sanitary pads and building toilets, we have to look at how other countries are reimagining menstrual health. Around the world, a distinct shift is underway: policies are moving away from treating periods as a private problem to be hidden, and are instead framing them as a matter of universal human rights and workplace dignity. Comparing these global models highlights the exact gaps in India’s current approach, showing what it looks like when a government commits to fighting period stigma rather than just managing period poverty.

In Scotland, the Period Products Act has been framed as an “anti-poverty measure.” It seeks “to ensure that all who menstruate can have reasonably convenient access to period products, free of charge, as and when they are required.” The law addresses “period poverty, defined as lack of access to products, period stigma and the effects of period on education.” One of its aims is to help people on low incomes to no longer have to choose between buying food and menstrual products, or miss work or school because of a lack of period products. Menstrual products should be a legal requirement with a universal scope, rather than limited to certain settings such as schools. The rationale for universal access was to avoid stigmatisation of people in need and to include people with no fixed address and homeless people.

Scotland adopted the Women’s Health Plan 2021–2024 (hereafter “the Plan”). The Plan calls for a life course approach to women’s health, including education about menstruation, increased information and research about endometriosis, and awareness about menopause.

In 2023, Spain revised its 2010 law on sexual and reproductive health and abortion. This legislation is, to our knowledge, the most comprehensive in the world in the field of menstrual health and hygiene. The legislation tackles multiple aspects of menstruation, namely, access to information and education from menarche to menopause, menstrual leave at work, access to healthy and sustainable menstrual products, and increased access to health care and research in the field of menstrual health.

The revised version in 2023 introduced provisions on menstrual health and hygiene, as well as gender identity, and rights after a miscarriage. During parliamentary debates, Irene Montero declared: “[or the first time in our country, and in a pioneering way, we recognise menstrual health as part of women’s health, and of the health of people who menstruate.” At the time of introducing the bill, she also stressed that one of the intentions of the law was to stop periods being taboo. The debates put women’s health and reproductive rights front and centre. Overall, the revision translated the then coalition government’s efforts “to break the stigma and politicisation of medical issues such as abortion and menstrual health in the country,” and to highlight the relationship between these issues and poverty.

Hennegan et al. recognise that “harmful norms and stigma surrounding the menstrual cycle undermine physical, mental and social well-being. “They highlight the importance of including menstrual health in policies to create a “safe and positive environment.

The Kenya MHM Policy’s rationale is to enhance the MHM status of women and girls in Kenya and to contribute towards the realisation of their full potential in National development. This policy also intends to highlight MHM as a rights issue and bring it into the mainstream of health and development. The policy examines the prevailing social, economic, cultural and demographic context of MHM for women and girls, including its implications for the consequences to their health and development. As a complement to sector-specific Policies and Programs, it defines structures and key components of MHM to facilitate its mainstreaming in all sectoral planning activities. In addition, the Policy has outlined principles, objectives, priority areas and actions for MHM in Kenya. The focus of the MHM Policy is to guarantee all Kenyan women and girls’ fundamental rights and freedoms, including dignity, safety, participation, health, education and decent work.

As discussed through the different country approaches above, the following table provides a comparative overview of India’s access-oriented menstrual health framework and the more transformation-oriented approaches adopted in countries such as Scotland, Spain, and Kenya.

CONCLUSION

In conclusion, the judgement in Dr Jaya S. Thakur v. Union of India marks a significant step in recognising menstrual hygiene as a constitutional issue connected to dignity, health, equality, and bodily autonomy under Article 21 of the Constitution. By acknowledging the institutional barriers faced by menstruating individuals and directing measures relating to sanitary products, hygienic infrastructure, and awareness initiatives, the Court expanded menstrual health beyond the limited sphere of welfare schemes into the framework of enforceable rights.

However, as this article has argued, the judgement largely adopts an access-centric approach focused on distribution and implementation mechanisms. While access to sanitary products, toilets, and awareness programmes is undeniably necessary, menstrual discrimination in India extends beyond material inaccessibility. The persistence of stigma, silence, exclusion, and discriminatory social attitudes demonstrates that the issue of menstruation is deeply rooted in behavioural and socio-cultural structures that cannot be addressed through accessibility alone.

Therefore, although the judgement represents an important constitutional recognition of menstrual rights, meaningful menstrual justice requires a transformation-oriented framework that goes beyond distribution and infrastructure. Real change can only be achieved when constitutional recognition is accompanied by efforts aimed at dismantling stigma, normalising conversations surrounding menstruation, and ensuring dignity not merely in law, but in lived social reality.

REFERENCE(S):

1. Dr Jaya Thakur v. Union of India, 2026 INSC 97 (India).
2. Sudhiksha Innanje, Supreme Court Directs Implementation of Menstrual Health Facilities in Schools, Supreme Court Observer (Feb. 18, 2026), https://www.scobserver.in/journal/supreme-court-directs-implementation-of-menstrual-health-facilities-in-schools/.
3. Dr Jaya Thakur v. Union of India, 2026 SCO.LR (2) 1, 4 (India).
4. Suhana Roy, Dignity, Equality, and Menstrual Health: A Constitutional Moment for India, Health & Hum. Rts. J. (Feb. 12, 2026), https://www.hhrjournal.org/2026/02/12/dignity-equality-and-menstrual-health-a-constitutional-moment-for-india/.
5. Ministry of Health & Family Welfare, Gov’t of India, National Menstrual Hygiene Policy for School Going Girls (2024).
6. National Health Mission, Ministry of Health & Family Welfare, Gov’t of India, Menstrual Hygiene Scheme (MHS).
7. Ministry of Drinking Water & Sanitation, Gov’t of India, Menstrual Hygiene Management Guidelines (2015).
8. Press Information Bureau, Ministry of Chemicals & Fertilizers, Gov’t of India, Steps Taken by the Government to Ensure Menstrual Hygiene (Aug. 2, 2022).
9. Rajya Sabha Secretariat, Annexure No. 179: State/UT-wise Percentage of Women Using Hygienic Methods of Protection During Menstruation (2023) (data sourced from NFHS-5).
10. Céline Brassart Olsen & Janne Rothmar Herrmann, The Emergence of “Menstrual Legislation” in Europe: A Critical, Comparative Analysis of the Recent Scottish and Spanish Legislations, 32 Eur. J. Health L. 445 (2025).
11. Bildhauer et al., supra note 16, at 12.
12. Scotland, Period Products (Free Provision) (Scotland) Bill: Explanatory Notes para. 4 (2019), https://www.parliament.scot/-/media/files/legislation/bills/s5-bills/period-products-free-provision-scotland-bill/introduced/explanatory-notes-period-products-scotland-bill.pdf.
13. A. Burn-Murdoch & J. McTaggart, SPICe Briefing: Period Products (Free Provision) (Scotland) Bill 3 (Scottish Parliament 2019).
14. Scotland, Period Products (Free Provision) (Scotland) Bill: Policy Memorandum paras. 93–95 (2019), https://www.parliament.scot/-/media/files/legislation/bills/s5-bills/period-products-free-provision-scotland-bill/introduced/policy-memorandum-period-products-scotland-bill.pdf.
15. Ley Orgánica 2/2010, de 3 de marzo, de Salud Sexual y Reproductiva y de la Interrupción Voluntaria del Embarazo (B.O.E. 2010, 55) (España).
16. Niha Masih, Need Time Off Work for Period Pain? These Countries Offer “Menstrual Leave,” Wash. Post (Feb. 17, 2023), https://www.washingtonpost.com/world/2023/02/17/spain-paid-menstrual-leave-countries/; Spain Approves Law Creating “Menstrual Leave” and Allowing Gender Determination from 16, Le Monde (Feb. 16, 2023), https://www.lemonde.fr/en/international/article/2023/02/16/spain-mps-pass-a-law-permitting-gender-self-determination-from-16_6016069_4.html.
17. Spain, supra note 15.
18. Congreso de los Diputados, Diario de Sesiones del Congreso de los Diputados Pleno y Diputaciones Permanentes 47 (Oct. 6, 2022), https://www.congreso.es/public_oficiales/L14/CONG/DS/PL/DSCD-14-PL-216.PDF.
19. La Moncloa, The Government of Spain Reforms the Law on Sexual and Reproductive Health and the Voluntary Interruption of Pregnancy (2022).
20. Hennegan et al., supra note 11, at 34.
21. Ministry of Health, Republic of Kenya, Menstrual Hygiene Management Policy 2019–2030 (2019).